2 I. Introduction. Employee benefits issues affecting same-sex couples changed dramatically in June 2013 with the Supreme Court s decision in United States v. Windsor, 133 S. Ct (2013). In Windsor, the Court struck down as unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage and spouse wherever those terms appear in federal statutes and regulations. Section 3 defined marriage to mean only an opposite-sex marriage and spouse to mean only an opposite-sex spouse. The Supreme Court held in a 5-4 opinion that Section 3 deprives couples in state-recognized same-sex marriages of equal protection under federal law, in violation of the Fifth Amendment to the United States Constitution. While Windsor does not mandate that any state make same-sex marriage available (and does not address Section 2 of DOMA, which provides that states are not required to recognize same-sex marriages from other jurisdictions), an increasing number of jurisdictions permit same-sex couples to marry. 1 As of June 10, 2014, same-sex couples can marry in nineteen states and the District of Columbia, as well as many foreign jurisdictions. 2 This paper will discuss guidance from the IRS and the Department of Labor post-windsor, and then highlight several general questions regarding employee benefits that remain open for same-sex couples. The paper will then focus on specific employee benefits issues for same-sex couples and how Windsor and the post-doma guidance from federal agencies changes the outcome of those issues under federal law and plan terms. 1 In Hollingsworth v. Perry, 133 S. Ct (2013), decided the same day as Windsor, the Supreme Court held that the Ninth Circuit Court of Appeals had lacked jurisdiction to review a federal district court s order holding unconstitutional California s constitutional provision that only marriage between a man and a woman is valid or recognized in California, clearing the way for same-sex marriages to resume in California. Because of the jurisdictional basis for the opinion, it does not affect same-sex marriage laws in states other than California. 2 See Freedom to Marry, Where State Laws Stand, available at Freedom to Marry, The Freedom to Marry Internationally, In Utah, Arkansas, Michigan, and Wisconsin, same-sex couples were permitted to marry for brief windows of time following judicial decisions striking down state same-sex marriage bans, but the decisions have been stayed on appeal. 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 2

3 II. IRS Guidance: Revenue Ruling On August 29, 2013, the IRS issued Revenue Ruling , answering three questions pertinent to employee benefit plans after the demise of DOMA 3: (1) Whether same-sex spouses lawfully married under state or foreign law are spouses for federal tax purposes: Yes. The terms spouse, husband and wife, husband, and wife include individuals married to a person of the same sex, if the couple is validly married under state or foreign law. (2) Whether the IRS recognizes such a marriage for federal tax purposes even if the state in which the couple is domiciled does not recognize the marriage: Yes. The IRS has adopted a place-of-celebration rule, recognizing the marriage if it was validly entered into in a state or foreign jurisdiction whose laws authorize the marriage of two individuals of the same sex, regardless of whether the marriage is recognized by the state of domicile. (3) Whether registered domestic partners and civil union partners are spouses for federal tax purposes: No. The terms spouse, husband and wife, husband, wife, and marriage do not include relationships or persons in relationships not denominated as marriage under the law of the state in which they were entered. See Rev. Ruling , available at Taxpayers may rely on the Revenue Ruling retroactively for open years for purposes of filing tax returns, amended returns, adjusted returns, or claims for credits or refunds. This means that individuals in same-sex marriages may amend federal tax returns to file jointly and may file claims to recover taxes paid on imputed income, among other issues, and employers may also file claims to recover taxes paid on imputed income. See VII.C.2, below; see Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law, available at ied-couples. For all other federal tax purposes, Revenue Ruling applies prospectively as of September 16, However, this prospective application for federal tax purposes does not control potential participant claims under ERISA Title I, as discussed more fully below in V.C.1. Revenue Ruling provides uniformity with respect to federal law, but 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 3

4 whether same-sex married couples who live in a state that does not recognize their marriage can file joint state tax returns depends on state tax law. For example, in Missouri, which has a state constitutional amendment banning same-sex marriage, the governor issued an executive order providing that same-sex married couples who file a joint federal return must file joint Missouri returns, because under state tax law, the state must accept jointly filed state returns from couples who file federal joint returns. See Executive Order (Nov. 14, 2013), at Other states that do not recognize same-sex marriages require taxpayers in same-sex marriages to file state returns as single. See, e.g., La. Dep t of Rev., Revenue Information Bulletin No (Sept. 13, 2013), at III. DOL Guidance: Technical Release No On September 18, 2013, the Department of Labor issued Technical Release No , which provides additional guidance for employee benefit plans on the definition of spouse and marriage under ERISA following Windsor. See DOL Technical Release No , available at Consistent with Revenue Ruling , the DOL s guidance provides that in Title I of ERISA, the Internal Revenue Code, and accompanying regulations: [T]he term spouse will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriage. [T]he term marriage will be read to include a same-sex marriage that is legally recognized as a marriage under any state law. Id. The Technical Release notes that adopting a contrary rule for employee benefit plans based on state of domicile would raise significant challenges for employers that operate or have employees in more than one state or whose employees move to another state while entitled to benefits. For example, the need for and validity of spousal elections, consents, and notices could change each time an employee or former employee moved to a state with different marriage recognition rules. See id. By recognizing marriages that are valid in the state where they were celebrated, the DOL s rule provides a uniform rule of recognition that can be applied with certainty by stakeholders, including employers, plan administrators, participants, and beneficiaries. Id. 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 4

5 In addition, consistent with the Revenue Ruling , the DOL s Technical Release further notes that the terms marriage and spouse as used in Title I of ERISA, the Internal Revenue Code, and related regulations do not include relationships and persons in relationships that are not denominated a marriage under state law, such as domestic partnerships and civil unions. See id. The DOL s guidance means that for qualified employee benefit plans, spousal benefits and/or consents mandated by ERISA and the IRC must be provided to same-sex spouses, regardless of where the couple resides. See VIII, below. IV. IRS Guidance: Notice On April 4, 2014, the IRS issued Notice , providing guidance on application of the Windsor decision and Revenue Ruling to Qualified Retirement Plans. Under this Notice, any retirement plan qualification rule that applies because a participant is married must be applied equally to same-sex spouses. Qualified plans must reflect the outcome of Windsor as of June 26, 2013 or risk losing tax qualification. Through September 16, 2013, a plan will not lose its tax qualification for recognizing only same-sex spouses of participants domiciled in states that recognize same-sex marriage. After that date, the marriage must be recognized regardless of the state of domicile. It is important to note that under Notice , plans may recognize samesex marriage for some or all purposes prior to June 26 or September 16, The Notice does not provide relief from any claim that an individual participant or same-sex spouse may bring asserting rights to spousal benefits that accrued before June If amendments are required for compliance with the Notice, they must be done by year-end 2014 in most circumstances. The Notice also provides a rule of interpretation: if a plan does not define spouse or marriage in a manner inconsistent with Windsor, an amendment is not required but the plan must be operated in accordance with the Notice. V. Isues After Windsor and Related Guidance from the IRS and DOL. After Windsor and related guidance from the IRS and DOL, there are four major categories of issues for employee benefits for same-sex couples: (1) the status of spousal-equivalent relationships, such as domestic partnerships and civil unions; (2) the interpretation of plan terms; (3) retroactivity questions arising from the invalidity of DOMA and the incremental recognition of same-sex marriage in the states; and (4) issues of the application of federal antidiscrimination laws, particularly Title VII of the Civil Rights Act of 1964 and the proposed Employment Non-Discrimination Act (ENDA). 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 5

6 A. Domestic Partnership/Civil Union Issues. One set of issues arises post-doma relating to employees in spousalequivalent statuses under state law. Seven states including some states that also offer same-sex marriage make a status available to same-sex couples, such as civil union or registered domestic partnership, that carries the same rights and obligations as marriage under state law (CA, CO, HI, IL, NJ, NV, OR). 3 This paper will refer to these statuses as domestic partnerships. Many of these state laws specifically provide that the state s domestic partners will be treated as spouses for all purposes under state law, including for purposes of marital property, taxation, intestacy, and parentage. See, e.g., Cal. Fam. Code 297.5; Colo. Rev. Stat Legislative history is often clear that the intent of these state laws is to treat domestic partners as married spouses. See, e.g., Colo. Rev. State (stating that the purpose of the Colorado Civil Union Act is to provide eligible couples the opportunities to obtain the benefits, protections, and responsibilities afforded by Colorado law to spouses ). In addition, states that do not make civil marriage available to same-sex couples but have a robust domestic partnership law often recognize out-of-state same-sex marriages as domestic partnerships. See, e.g., Colo. Rev. Stat Under DOMA 3, domestic partners could not be treated as spouses under federal law even where they were treated as spouses for purposes of state law. As noted above, now that Section 3 has been repealed, the IRS and DOL have made clear that for purposes of federal employee benefits law and federal tax law, the 3 Same-sex marriage is available in numerous states that provide or provided same-sex couples with civil unions or registered domestic partnerships. These states have taken varying approaches as to whether to continue to provide equivalent statuses. For example, in California, New Jersey, Hawai i, and Illinois, same-sex couples may marry or enter into spousal-equivalent statuses, which will continue to be recognized as such. See Cal. Sec y of State, California Domestic Partnership Registry, available at New Jersey Dep t of Health, Frequently Asked Questions, available at Hawai i Act. 001, available at Illinois Religious Freedom and Marriage Fairness Act, Ill. Public Act Some states that formerly provided domestic partnerships or civil unions no longer do so now that marriage is available to same-sex couples, however. See, e.g., State of Delaware, Delaware Marriage, available at (noting that no new civil unions will be created); Rhode Island Dep t of Health, Rhode Island s Marriage Equality Law, available at (noting that civil unions are not available after August 1, 2013). 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 6

7 terms spouse and marriage do not include domestic partners and domestic partnerships. 4 See also Answers to Frequently Asked Questions for Registered Domestic Partners and Civil Union Partners, available at estic-partners-and-individuals-in-civil-unions. The treatment of these statuses by employee benefit plans is likely to become less significant as same-sex marriage becomes better established. That is, because same-sex married couples are recognized as such for federal law purposes even if they reside in a non-same-sex marriage state, it is unlikely to be significant for federal law purposes whether the state where they reside recognizes them as domestic partners or civil union parties although it may be significant for state law purposes. Employee benefit plans will likely face questions regarding the status of domestic partners under their terms. For example, if a plan does not define spouse but incorporates California law, California registered domestic partners may argue that they are entitled to be treated as spouses under the plan terms even if the plan terms do not explicitly provide benefits for domestic partners. Other issues may also arise under plan terms, particularly for claims that arise pre-windsor. 4 Additionally, in the wake of Windsor, state bans on same-sex marriage will continue to be the subject of constitutional challenges under both state and federal constitutions. As of May 1, 2014, 72 lawsuits have been filed in 31 states and territories by same-sex couples seeking to marry or have their existing marriages recognized. See Freedom to Marry, Marriage Litigation, at Litigation challenging state laws in nine states is currently pending in the U.S. Courts of Appeals. See id. An analysis of these constitutional issues is outside the scope of this paper, but many commentators including Justice Scalia in his Windsor dissent believe that Windsor bolsters these constitutional challenges. Indeed, several recent decisions overturning state same-sex marriage bans or state bars on recognition of out-ofstate same-sex marriages have relied heavily on Windsor. See, e.g., DeBoer v. Snyder, No. 12-CV-10285, 2014 WL , at *15 n.6 (E.D. Mich. Mar. 21, 2014); Bostic v. Rainey, No. 13c-CV-395, 2014 WL (E.D. Va. Feb. 13, 2014); Bourke v. Beshear, No. 13-CV-750-H, 2014 WL (W.D. Ky. Feb. 12, 2014); Bishop v. U.S. ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL (N.D. Okla. Jan. 14, 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1195 (D. Utah 2013) (noting that while Windsor does not answer the question presented here... its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development ). All of these cases are currently on appeal. 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 7

8 B. Plan Interpretation Questions. Plan language establishing spousal benefits has been subject to interpretation, but the DOL s Technical Release and IRS Notice resolve some previous questions. Plan language generally falls into the following categories: Plan does not define spouse with reference to sex or with reference to any state s law: pursuant to Technical Release and Notice , there is a strong argument that the plan provides benefits to all legally married spouses, regardless of the law of the state where they live or work. See, e.g., Cozen O Connor P.C. v. Tobits, 2013 WL (E.D. Pa. July 29, 2013). Plan defines spouse by specific reference to DOMA: there is an argument that invalidity of DOMA means that the plan provides benefits to all legally married spouses. Plan defines spouse as opposite-sex spouse : the plan term is clear, but plans are required to treat same-sex spouses as spouses for federal tax purposes due to Revenue Ruling , and pension plans must provide certain mandatory benefits to same-sex spouses pursuant to Technical Release See VIII.C, below. In addition, plans defining spouse as opposite-sex spouse may be subject to sex discrimination claims. See V.D, below. To the extent that plans have discretion to define eligibility for spousal benefits not mandated by ERISA or the Internal Revenue Code, for the reasons cited in Technical Release , a place of celebration rule will be the most efficient for plan administrators. It avoids the need for plan administrators to inquire into the sex of each married plan participant s spouse, as well as the need for plan administrators to monitor the state of domicile for all same-sex married employees and former employees and their spouses. In addition, a place-ofcelebration rule avoids the need for changes to plan terms and administrative procedures as state laws change a trend that seems likely to continue. C. Retroactivity Issues. Significant retroactivity issues can be expected to arise from both DOMA s unconstitutionality and from the changing landscape of same-sex marriage in the states. 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 8

9 1. Invalidity of DOMA; Rev. Rul , Notice , and Technical Release The invalidity of DOMA raises the question whether same-sex married spouses are entitled to be treated as married under federal law retroactive to the dates of their marriages. Revenue Ruling and Notice make clear that for federal tax purposes, employee benefit plans must recognize many same-sex marriages beginning June 26, 2013, and all same-sex marriages beginning September 16, Thus, a plan does not fail to comply with requirements of the Internal Revenue Code because it fails to recognize a same-sex marriage prior to that date. However, federal tax law does not control claims by participants and beneficiaries under ERISA 502(a), 29 U.S.C. 1132(a). See Crawford v. Roane, 53 F.3d 750, (6th Cir. 1995) (holding that court has no power to resolve tax qualification issues in an action under ERISA 502, but [e]ven if this Court would determine that the Plan is disqualified for tax-deferred treatment, the written terms of the Plan would continue to be effective as a written contract between the participant, his beneficiaries, and the Plan sponsor. ). In addition, federal tax law does not control claims by participants under Title VII. See V.D, below. In particular, if a participant or beneficiary has a claim for benefits under the terms of a plan, if the plan can be read to provide spousal benefits to same-sex spouses, that claim can still be brought even if it arises before Windsor. See, e.g., Cozen O Connor P.C. v. Tobits, 2013 WL (E.D. Pa. July 29, 2013) (holding that surviving same-sex spouse was entitled to spousal benefit where plan did not exclude same-sex spouses from definition of spouse). In sum, although a plan can comply with federal tax law prior to June 26 or September 16, 2013 without recognizing same-sex marriages, participants and beneficiaries may still bring claims for spousal benefits and claims for violations of ERISA or the terms of a plan, even if the claims arise before that date. Such claims could raise issues such as the following: Available forms of benefit under defined benefit pension plans: if a same-sex married participant retired prior to Windsor and was treated as ineligible to elect a joint and survivor annuity, is that participant now entitled to make that election? If the participant is entitled to make that election, must he or she repay benefits to the plan that were paid as a single life annuity? What if the participant died after retiring is the surviving spouse entitled to a survivor annuity? See VIII.C, below. Qualified preretirement survivor annuities: if a same-sex married participant in a defined benefit pension plan died pre-retirement prior to Windsor and the surviving spouse was deemed ineligible for a 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 9

10 preretirement survivor annuity, is the surviving spouse now eligible, and is eligibility retroactive to the date of death? See VIII.C, below. Default beneficiary provisions under defined contribution or life insurance plans: if a same-sex married participant died prior to Windsor without designating a beneficiary, who gets the benefit under the plan s order of priority? See Cozen O Connor, 2013 WL (addressing interpleader of profit-sharing plan benefit where competing claimants were participant s same-sex widow and parents). Available forms of benefit under defined contribution plans: if a samesex married participant died prior to Windsor, leaving his or her spouse as the beneficiary, may the spouse now retroactively elect a spousal form of distribution? See VIII.C, below. Spousal consent under defined contribution plans: if a same-sex married participant died prior to Windsor, having named a nonspouse beneficiary without spousal consent, can the spouse now challenge the distribution to the nonspouse? See ERISA 205, 29 U.S.C Participants and beneficiaries have a strong argument that Windsor and subsequent federal guidance must now be applied even to facts predating Windsor. In Windsor, the Supreme Court struck down as unconstitutional Section 3 of DOMA and applied its ruling to the parties in that case. It affirmed the lower court s judgment requiring the United States to refund Ms. Windsor the $363,053 in estate taxes that she had paid to the IRS (as well as interest on the taxes) following the death of her wife in See 133 S. Ct. at 2682, This was the case even though at the time that Ms. Windsor s wife died, DOMA precluded the IRS from recognizing Ms. Windsor as the surviving spouse. The Supreme Court has stated that in civil cases, its application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision. Harper v. Va. Dep t of Taxation, 509 U.S. 86, 89 (1993). In particular, the Supreme Court s application of federal law to the parties before it is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule. Id. at 97 (emphasis added). Windsor is not the first case to remove unconstitutional bars to benefits, and courts have applied Supreme Court decisions retroactively in the benefit context. For example, in Hurvich v. Califano, 457 F. Supp. 760 (N.D. Cal. 1978), the court held that Mr. Hurvich, a widower, was entitled to receive Social Security father s benefits retroactive to the date of his wife s death in This was the case even though the Social Security statute had limited such benefits to mothers until 1975, when the Supreme Court found statute s gender classification unconstitutional. 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 10

11 While these retroactivity issues have not yet been litigated, in April 2014, the U.S. Office of Personnel Management (OPM) granted an administrative claim for retroactive survivor benefits brought by the surviving same-sex spouse of a federal employee who died in The couple had married in California in When the employee passed away in 2011, the surviving spouse was told that she would not be eligible for any survivor benefits under the Federal Employees Retirement System because DOMA precluded recognition of the marriage. The surviving spouse filed a timely claim for survivor benefits in 2014, arguing that OPM should apply the current law, not the prior unconstitutional law, in evaluating the claim. OPM granted the claim, and the surviving spouse received a lump-sum death benefit and a monthly annuity retroactive to the date of her spouse s death in Retroactivity issues are likely to be rare. While the exact number of same-sex couples in the United States who had married under the law of a state or a foreign jurisdiction at the time of Windsor is unknown, estimates run in the 100,000 range. See Pew Research Center, How many same-sex marriages in the U.S.? At least 71,165, probably more (June 26, 2013), available at -the-u-s-at-least probably-more/. For a retroactivity issue to arise under an employee benefit plan, there must be: (1) a same-sex couple validly married under the law of a state or foreign jurisdiction before Windsor; (2) with a spouse participating in an employee benefit plan; and (3) a triggering event occurred before Windsor (for example, for pension plans, the spouse retired or died, or the couple divorced); and (4) because of non-recognition of the marriage by the plan, the couple or spouse was deprived of a spousal benefit that would have been provided had the marriage been recognized. Thus, for any particular plan, retroactivity issues are likely to be unique, individualized, and best addressed on a case-by-case basis. 2. Changes in State Law. Retroactivity issues also arise from the incremental recognition of marriages in the states. The facts of Windsor present a good example: the Supreme Court noted that the New York couple in Windsor, Ms. Windsor and Ms. Spyer, became 5 In May 2014, one of the former plaintiffs in Pedersen v. OPM, a 2010 case challenging the constitutionality of DOMA, filed suit seeking a survivor benefit under a defined benefit plan sponsored by Bayer. See Passaro v. Bayer Corp., No. 14:cv WWE (D. Conn.). The couple married in 2008 in Connecticut and the plaintiff s same-sex spouse passed away in In 2010, the plaintiff was denied the survivor benefit due to DOMA, and he filed suit challenging DOMA s constitutionality. In 2013, after Windsor, the plaintiff obtained a judgment in the Pedersen case that DOMA was unconstitutional as applied to him. In this case, the plaintiff alleges that in 2014, Bayer told him that it would not voluntarily pay the benefit. While this case seeks a retroactive benefit, the analysis is likely different because the plaintiff has a judgment in an earlier case. 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 11

12 New York domestic partners in 1993 and married in Canada in S. Ct. at In 2008, New York s governor directed state agencies to begin recognizing out-of-state same-sex marriages. That direction was the subject of litigation that did not resolve until New York ultimately began making civil marriage available to same-sex couples in Meanwhile, Ms. Spyer died in The Supreme Court noted that the State of New York deems their Ontario marriage to be a valid one. Id. However, the Supreme Court had no occasion to determine what would have happened if New York had not recognized same-sex marriages until after Ms. Spyer s death. Retroactivity issues may also arise in states that provide for the conversion under state law of domestic partnerships into marriages. In Delaware, for example, same-sex couples in civil unions can act to convert their civil unions to marriages, and for those who do not act, on July 1, 2014, all civil unions will automatically be converted to marriages. See 13 Del. C The effective date of each marriage for state law purposes will be deemed to be the date of the original civil union. See id. Thus, retroactivity issues may arise as to the marriages with effective dates prior to Windsor. D. Title VII and the Employment Non-Discrimination Act (ENDA). After Windsor, Revenue Ruling , and Technical Release , plans will remain free to define spouse as opposite-sex spouse for some purposes. However, recent developments in Title VII law may lay the groundwork for sex discrimination claims based on denial of spousal benefits to same-sex married employees. Historically, courts have classified sex discrimination claims by gay and lesbian employees as claims of sexual orientation discrimination that are not cognizable under Title VII. More recent developments, however, suggest that courts may begin to take a different view of whether claims that have been classified as sexual orientation and/or gender identity discrimination claims may in fact state claims of discrimination because of sex. In particular, the Equal Employment Opportunity Commission has found that claims by gay and lesbian federal employees alleging sex-stereotyping state a sex discrimination claim under Title VII. For example, in Veretto v. U.S. Postal Service, EEOC Appeal No , 2011 WL (E.E.O.C.) (July 1, 2011), the Commission held that discrimination based on the sex stereotype that men should only marry women can constitute discrimination based on sex. Likewise, in Castello v. U.S. Postal Service, EEOC Request No , 2011 WL (E.E.O.C.) (Dec. 20, 2011), the Commission concluded that discrimination based on the sex stereotype that women should only have sexual relationships with men can constitute discrimination based on sex. In April 2012, the Equal Employment Opportunity Commission issued its decision in Macy v. Dept. of Justice, EEOC Appeal No , 2012 WL (E.E.O.C.) (Apr. 20, 2012). Macy 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 12

13 involved a transgender applicant for federal employment. The Commission held that a complaint of discrimination based on gender identity, change of sex, and/or transgender status was cognizable under Title VII. Although dealing directly with discrimination against a transgender person, the rationale of Macy has been widely viewed as supporting the argument that claims of discrimination against gay and lesbian employees are cognizable under Title VII. 6 Citing these and other decisions, the EEOC has issued guidance stating that federal employees who believe they have been discriminated against on the basis of sexual orientation have a right to pursue sex discrimination claims. See Equal Employment Opportunity Commission, Processing Complaints of Discrimination by Lesbian, Gay, Bisexual, and Transgender (LGBT) Federal Employees, available at nt=1. In addition, a federal district court recently held that a gay employee sufficiently pled a claim for sex discrimination under Title VII because as a gay man, the employee s sexual orientation was not consistent with the defendant s perception of acceptable gender roles. Terveer v. Billington, F. Supp. 2d, 2014 WL , at *9 (D.D.C. Mar. 31, 2014). Although the rationale that discrimination against gay and lesbian employees may violate Title VII or other antidiscrimination laws has not been tested in the benefit plan context, a plan provision limiting spousal benefits to opposite-sex spouses could be seen as embodying a sex stereotype that women should marry men and men should marry women. One such claim has been brought so far, in Hall v. BNSF Railway Co., No (W.D. Washington), filed on December 3, Hall asserts that his employer s refusal to enroll his same-sex spouse in its health plan is a violation of the Equal Pay Act. 7 Although DOMA did not directly affect such a claim, or similar potential claims, the elimination of DOMA eliminates a potential rationale whether correct or not for such a plan design decision. ENDA is proposed federal legislation that would prohibit discrimination in employment on the basis of sexual orientation and gender identity. The most recent version of ENDA, which was passed by the Senate on November 7, 2013, does not 6 In recent years, federal courts have concluded that discrimination against transgender individuals because of their gender non-conformity is gender stereotyping prohibited by Title VII. See Glenn v. Brumby, 663 F.3d 1312, (11th Cir. 2011) (citing Title VII cases). 7 It is not clear whether the plan at issue in Hall is an ERISA plan. 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 13

14 contain the benefits plan carve-out present in previous versions. See Prior versions provided that nothing in ENDA would be construed to require an employer to treat as married for purposes of any employee benefits plan any person who was not married within the meaning of DOMA 3. See, e.g., S. 811 (112th Cong.) (Employment Non- Discrimination Act of 2011). E. Selected Early Post-Windsor Court Decisions. 1. Same-Sex Widow Entitled to Pension Benefit. In the first post-windsor ERISA decision, the U.S. District Court for the Eastern District of Pennsylvania awarded a surviving spouse benefit under a profitsharing plan to a participant s same-sex widow. Cozen O Connor P.C. v. Tobits, 2013 WL (E.D. Pa. July 29, 2013). In Cozen O Connor, the couple married in Canada in 2007 and resided in Illinois. One spouse worked in the Chicago office of a Philadelphia-based law firm, which sponsored a profit-sharing plan. The participant spouse died in 2010, without having executed a valid beneficiary designation for her plan account. Both the widow and the participant s parents filed claims for the benefit, and the plan filed an interpleader action. The plan terms did not define spouse, other than incorporating the ERISA-permitted requirement that the couple have been married for at least a year as of the earlier of the annuity starting date or death. After Windsor, the court held that the widow was entitled to the benefit under the plan s default order of priority. The court explained that ERISA and the IRC establish the floor for spousal rights in pension plans, and that Windsor leveled the floor, requiring equal treatment of legally married couples. Because the couple were validly married in Canada, and the Illinois probate court had recognized the widow as a surviving civil union partner, which is equivalent to a surviving spouse under Illinois law, the widow was entitled to be treated as the surviving spouse under the plan. The plan s Pennsylvania choice-of-law provision Pennsylvania being a non-marriage state did not control the outcome because ERISA preempted Pennsylvania law. Although the parents initially appealed, they dismissed the appeal following issuance of Rev. Rul Ohio Required to Recognize Maryland Marriage. In the first post-windsor decision on the validity of a state non-recognition law, the U.S. District Court for the Southern District of Ohio issued a temporary restraining order prohibiting the local Ohio registrar from accepting a death certificate for a same-sex-married person that did not reflect that the person was married and that his husband was his surviving spouse. Obergefell v. Kasich, No. 13-cv-501, 2013 WL (S.D. Ohio July 22, 2013). The couple resided in Ohio 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 14

15 and traveled to Maryland to be married. When one spouse s death from ALS was imminent, they filed suit to compel recognition of the marriage on the death certificate. The court held that Ohio s statute prohibiting recognition of out-of-state same-sex marriages, enacted in 2004, was a denial of equal protection. The court emphasized that Ohio recognizes out-of-state opposite-sex marriages even where the couple could not have married in Ohio, such as where the couple are first cousins or where one spouse is underage. On December 23, 2013, the district court issued a permanent injunction requiring Ohio to recognize valid out-of-state same-sex marriages on Ohio death certificates. Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013). The state of Ohio appealed. As of May 1, 2014, the case is being briefed in the Sixth Circuit. 3. Missouri Court Denies Survivor Benefits to Unmarried Same-Sex Partner of Deceased Highway Patrol Employee. The Supreme Court of Missouri affirmed a decision denying survivor benefits to a same-sex partner of a deceased highway patrol employee. Glossip v. Missouri Dep t of Transp. & Hwy. Patrol Employees Retirement Sys., S.W.3d, 2013 WL (Mo. Oct. 29, 2013) (en banc). The couple had been in a relationship since 1995, but had never married. The court concluded that the plaintiff was properly denied survivor benefits because he and the patrolman were not married. Id. at *1, *5-6. The court rejected the argument that the state could not constitutionally condition the receipt of benefits on marital status given that Missouri banned samesex marriage. Id. at *6. It noted that the case would require a different analysis if, as in Windsor, the couple had been married under the law of another state or jurisdiction. Id. 4. Former Federal Employee in Oregon Entitled to Reimbursement for Her Domestic Partner s Health Benefits. A Ninth Circuit panel awarded back pay for the costs of health insurance to a former federal employee in Oregon who had not been permitted to enroll her samesex domestic partner in the federal employees health plan. In re Fonberg, F.3d, 2013 WL (Nov. 25, 2013); see IX.B, below. The court concluded that Ms. Fonberg and her partner were treated differently in two ways. First, they were treated differently from opposite-sex couples who could marry and gain spousal benefits under federal law, which the court found was discrimination on the basis of sexual orientation in violation of the District of Oregon s Employment Dispute Resolution plan. Second, they were treated differently compared to other same-sex couples in other states in the Ninth Circuit, who could marry and gain federal benefits under Windsor, and this violated the principle that federal employees 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 15

16 must not be treated unequally in the entitlements and benefits of federal employment based on the vagaries of state law. See id. at *2. It further found that the Office of Personnel Management s distinction based on the sex of the participants in the union constituted sex discrimination and a deprivation of due process and equal protection. See id. 5. No ERISA Section 510 Claim for Health Plan s Exclusion of Same-Sex Spouses. A district court in the Southern District of New York recently dismissed a case alleging that an ERISA-governed health plan s exclusion of same-sex spouses and domestic partners violates Section 510 of ERISA, which prohibits employers from discriminating against participants for exercising rights to which they are entitled under an employee benefit plan. Roe v. Empire Blue Cross Blue Shield, No. 12-cv (NSR), 2014 WL (S.D.N.Y. May 1, 2014). The plaintiffs also alleged that the defendants breached their fiduciary duties by enforcing a plan term that violated ERISA. The plan at issue did not define spouse, but contained an exclusion stating Same sex spouses and domestic partners are NOT covered under this plan. Id. at *1. The plaintiff filed a proposed class action in 2012 on behalf of participants or beneficiaries of Blue Cross Blue Shield insurance plans in New York and participants and beneficiaries of the particular plan at issue who are affected by the policy of denying coverage to same-sex spouses. The court dismissed the case, noting that ERISA does not require a health plan to provide benefits to spouses at all, that the Plan did not violate ERISA, and that Section 510 of ERISA did not apply. The plaintiffs had not raised, and the court did not address, whether the Exclusion is lawful under other federal laws. Id. at *8. While it is clear that health plans are not required by ERISA to provide coverage for any spouses, opposite- or same-sex, see VII.B.2 below, those seeking to challenge plan terms that are discriminatory on their face can argue that such discrimination violates federal antidiscrimination laws such as Title VII. See V.D, above. VI. Relevant Federal Statutes. A. ERISA. 1. Plans Regulated by ERISA. The Employee Retirement Income Security Act of 1974, 29 U.S.C et seq. ( ERISA ), governs most employee benefits provided by private employers and unions. Specifically, ERISA governs two distinct kinds of plans: employee pension benefit plans and employee welfare benefit plans. The term employee pension benefit plan or pension plan includes any plan that provides retirement income to 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 16

17 employees or results in a deferral of income by employees for periods extending to the termination of employment or beyond. ERISA 3(2), 29 U.S.C. 1002(2). The term employee welfare benefit plan or welfare plan includes any plan that provides, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 302(c) of the LMRA. ERISA 3(1), 29 U.S.C. 1002(1). As discussed below, the distinction between pension benefits and welfare benefits is significant in the context of benefits for same-sex couples, because pension plans are subject to special rules protecting spousal benefits, and because when DOMA was in effect, welfare plan benefits had tax consequences for same-sex couples. 2. Plans Not Regulated by ERISA. ERISA does not govern plans that provide benefits not enumerated in its definitional sections, including moving expenses, bereavement leave, family medical leave, maternity and paternity leave, merchandise discounts, memberships, membership discounts, and travel benefits. 8 See Air Transport Ass n of Am. v. City & County of San Francisco, 992 F. Supp. 1149, 1174 (N.D. Cal. 1998), aff d in part and remanded in part on other grounds, 266 F.3d 1064 (9th Cir. 2001). ERISA also does not govern benefits provided by federal, state, or local governments ( government plans ), or by churches or associations or conventions of churches ( church plans ). ERISA 4(b), 29 U.S.C. 1003(b). 8 An analysis of non-erisa plans is beyond the scope of this paper. It bears noting, however, that the regulations under the Family and Medical Leave Act define spouse with reference to the law of the state where an employee is domiciled: Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized. 29 C.F.R After Windsor, the Department of Labor issued guidance stating that this state-of-residence recognition requirement applies to same-sex marriages. U.S. Dep t of Labor, Fact Sheet #28F: Qualifying Reasons for Leave Under the Family Medical Leave Act (Aug. 2013), available at ( Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the state where the employee resides, including common law marriage and same-sex marriage. ). 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 17

18 Church plans may elect ERISA coverage as to their pension plans. ERISA 4(b)(2), 29 U.S.C. 1003(b)(2). Whether pension plans established by church-affiliated entities, such as healthcare organizations, are exempt from ERISA is in question. See Rollins v. Dignity Health, F. Supp. 2d, No. 13-cv-1450-THE, 2013 WL (N.D. Cal. Dec. 12, 2013) (collecting cases). While the law remains unsettled, some courts have found that churches may elect ERISA coverage for their welfare plans. See Medellin v. CommunityCare HMO, Inc., 2011 WL (N.D. Okla., Mar. 31, 2011) (collecting cases); Catholic Charities of Maine, Inc. v. City of Portland, 304 F. Supp. 2d 77 (D. Me. 2004) (discussing election of ERISA coverage by church welfare plan to avoid city requirement that contractors provide health benefits to employees same-sex domestic partners); but see Okerman v. Life Ins. Co. of N. Am., CIV-S GEBPAN, 2001 WL (E.D. Cal. Dec. 24, 2001) (holding that church plan was not an ERISA plan because it had not made an affirmative election, but also apparently concluding that such an election was not available); Dep t of Labor, Advisory Letter No A ( It is the Department s understanding that an election pursuant to Code section 410(d), as referenced in ERISA section 4(b)(2), is available for purposes of Title I of ERISA only to a pension benefit arrangement. ). Courts that have concluded that church welfare plans can elect ERISA coverage have generally required an affirmative election. See Rinehart v. Life Ins. Co. of N. Am., 2009 WL , at *5 (W.D. Wash. Apr. 14, 2009) (finding that employer never made an affirmative election under 410(d) as required to have [ ] ERISA apply to the LTD plan despite filing IRS Form 5500s for years); Medellin, 787 F. Supp. 2d at ( [B]ased on the absence of any affirmative election in the record, the Court is unwilling to find that the Plan is governed by ERISA because of an election pursuant to Section 410(d). ); Torres v. Bella Vista Hosp., Inc., 523 F. Supp. 2d 123, 141 & n.3 (D.P.R. 2007) ( I defer to the Code of Federal Regulations, which imposes a strict requirement that the electing party state explicitly that it is making its election under 410(d). 26 C.F.R (d)-1(c)(5). ). 3. ERISA Preemption. ERISA supersedes any and all state laws that relate to employee benefit plans, except state laws that regulate insurance, banking, or securities. ERISA 514, 29 U.S.C Thus, state and local governments cannot directly mandate the provision of ERISA-governed benefits, including benefits for same-sex couples. See Air Transport Ass n of Am. v. City & County of San Francisco, 992 F. Supp. 1149, 1174 (N.D. Cal. 1998), aff d in part and remanded in part on other grounds, 266 F.3d 1064 (9th Cir. 2001). Likewise, state anti-discrimination laws are preempted by ERISA insofar as they apply to employee benefit plans, except to the extent that state law is consistent with Title VII. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983) (in pre-pregnancy Disability Act case, holding New York Human Rights Law 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 18

19 pregnancy discrimination provision preempted as to ERISA plans). Thus, state prohibitions on sexual orientation or marital status discrimination are inapplicable to ERISA plans, except to the extent that sexual orientation discrimination constitutes sex-stereotyping under Title VII. See V.D, above. However, the insurance savings clause allows states to regulate insured ERISA plans indirectly by regulating the terms of insurance policies. FMC Corp. v. Holliday, 498 U.S. 52, 58 (1990); see Kentucky Ass n of Health Plans Inc. v. Miller, 538 U.S. 329 (2003) ( any willing provider statute saved from preemption); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 387 (2002) (HMO independent review law saved from preemption). As discussed below, some states mandate the provision of same-sex spouse or domestic partner coverage by insured plans through a regulation of insurance, or mandate that insurers offer employers the option of providing such coverage. B. DOMA. Section 3 of the federal Defense of Marriage Act ( DOMA ) defined the terms marriage and spouse for purposes of federal law: In determining the meaning of an Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. 7. Thus, before Windsor, where ERISA referred to marriage or spouse, these terms excluded same-sex spouses and civil union partners/domestic partners. The same applied to other benefits-related federal laws such as the Internal Revenue Code and the statute governing the Federal Employees Health Benefit Program ( FEHBP ), 5 U.S.C. Ch. 89. While DOMA governed the interpretation of the terms marriage and spouse in the statute itself, DOMA did not prescribe the meanings of these terms as they appeared in ERISA-governed benefit plans. With possible limited exceptions discussed below, even before Windsor, private employers were free to define these terms in their benefit plans to include same-sex couples, or to use other terms to extend eligibility to same-sex spouses or civil union partners/domestic partners, as the plan chose to define those terms. See Union Sec. Ins. Co. v. Blakeley, 656 F3d 275 (6th Cir. 2011) (holding that whether an opposite-sex cohabitant was a domestic partner within the meaning of an ERISA-governed life insurance plan should be determined by reference to the plan language, not by reference to a federal commonlaw definition of domestic partner ); see also Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69 (3d Cir. 2011) (holding that meaning of children in a welfare plan was to be determined by reference to the intent of the parties and not to state law). 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 19

20 C. Internal Revenue Code Definition of Dependent. After Windsor and Rev. Rul , same-sex spouses can no longer be tax dependents under federal tax law. See Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law, available at ied-couples. However, the status of a same-sex domestic partner as a tax dependent will continue to affect a variety of issues under pension and welfare plans because domestic partners and civil union partners are not recognized as spouses under federal law. See Rev. Rul To be treated as a dependent under the Internal Revenue Code, a domestic partner must: (1) have the same principal place of abode as the employee and be a member of the employee s household, (2) receive more than half of his or her support for the taxable year from the employee, and (3) have gross income less than the applicable exemption amount ($3,700 in 2011). IRC 151(d), 152(d). Other requirements for dependent status, such as that the dependent not be a spouse (for federal law purposes) or child of the employee, would by definition be met by a domestic partner. For federal tax purposes, before Windsor the IRS recognized the community property rights of same-sex spouses and domestic partners in community property states that recognize those rights (currently CA, NV, and WA). See IRS CCA (May 28, 2010), available at IRS, 1040 Instructions 2012, p. 20, available at IRS, 1040EZ Instructions 2012, p. 10, available at Revenue Ruling does not appear to change this rule for domestic partners. For this reason, in these states a domestic partner, if not recognized under federal law, is likely to have income in excess of the applicable exemption amount, because even if the domestic partner has no income, one-half of the employee s income will be attributable to him or her. In addition, the support requirement is unlikely to be met unless the employee provides more than 50 percent of the domestic partner s support from separate property. VII. Welfare Plan Issues. A. Continuation Coverage. 1. Federal Law. Amendments to ERISA by the Consolidated Omnibus Budget Reconciliation Act of 1986 ( COBRA ) added the requirement that ERISA-governed group health plans provide continuation coverage to employees and their qualified beneficiaries in the case of a loss or reduction of coverage due to various qualifying events, 2012, 2013, 2014 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Page 20

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